Koeppel v. Koeppel — 99 N.Y.S. 872

Majority

p. 872

KOEPPEL v. KOEPPEL et al.

(Supreme Court, Appellate Term.

June 28, 1906.)

Headnote

Costs—Persons Entitled—Making Case and Exceptions.

Where, on appeal from an order granting a new trial, plaintiff merely printed the papers enumerated in the order appealed from, which included the case and exceptions already made by defendants, plaintiff was not entitled to costs for the making of a case and exceptions.

Appeal from City Court of New York, Special Term.

Action by Fishel Koeppel against Mendel Koeppel and another. Appeal by defendants from an order denying a motion for a retaxation of costs.

Reversed.

See 98 N. Y. Supp. 215 , 670.

Argued before GILDERSLEBVE, LEVENTRITT, and McCALL, JJ.

Steuer & Hoffman, for appellants.

Schleimer & Schleimer (Max Schleimer, of counsel), for respondent.

On February 20, 1905, the plaintiff obtained a judgment against defendants. Subsequently, a motion was made upon a case and exceptions for a new trial on the ground of newly discovered evidence. The motion for a new trial was granted. The plaintiff appealed from the order granting a new trial. The Appellate Term of this court reversed the order, “with costs and disbursements.” The costs were taxed at $10 and disbursements. Plaintiff appealed from an order denying his motion for a retaxation of costs, on the ground that his costs were wrongfully limited to $10. The Appellate Term- reversed the order denying plaintiff’s said motion for a retaxation, and remitted the bill of costs to the City Court for retaxation; holding that plaintiff was entitled to full costs. See Koeppel v. Koeppel (Sup.) 98 N. Y. Supp. 215 , 216 (Newburger, J.). The costs were retaxed, and defendants objected to the following items, viz.: Making and serving case, $20; making and serving case of more than 50 folios, $10; three term fees in the Appellate Term, $30; and made a motion to retax the costs by disallowing these items. This motion was denied, and from the order denying this motion to retax the costs, defendants now appeal to this court.

Appellants urge' that the costs were taxed as costs of a motion for a new trial, not as costs of an appeal, and that this motion was on the calendar for one term only, so that the $30 for three term fees were erroneously allowed.

The appellants further urge that the case and exceptions were made and served by them, not by the plaintiff, and that it was therefore improper to allow plaintiff $20 for making and serving said case on appeal, and that the $10 allowed on the ground that the case exceeded

p. 873

50 folios was improper, both because plaintiff did not make and serve the case, and because said case did not in point of fact contain 50 folios.

The appellants’ contentions seem well founded as to the $30 term fees and the $10 for the case being over 50 folios, but the $20 for making and serving the case on appeal seems to have been decided already against defendant’s contention by the Appellate Term on the appeal above referred to. 98 N. Y. Supp. 216 . We do not agree with this contention, as the precise question here presented did not come up on the former appeal. The case and exceptions were not made by this plaintiff, but by the defendants. All the plaintiff did was to print the papers enumerated in the order" appealed from, which included the case and exceptions already made by defendants. The plaintiff cannot have costs for the making of a case and exceptions which were not made by him, but by defendants.

The order must be reversed as to all the three items in question, with $10 costs of this appeal and disbursements.